Date: 20120402
Docket: IMM-3236-11
Citation: 2012 FC 385
Ottawa, Ontario, April 2,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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CARLOS CLARA VAZQUEZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, a citizen of Mexico, claimed refugee protection based on
allegations that he had been threatened and assaulted by members of an
organized crime group and corrupt government officials. The hearing before the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
was to take place on March 11, 2011. Two days before the hearing, the applicant
requested a postponement of the hearing in order to seek legal counsel. This
request was rejected. At the hearing, the applicant requested an adjournment on
the same grounds. This request was again rejected and the hearing proceeded. In
a decision dated March 21, 2011, the Board rejected the applicant’s claim for
refugee protection. The Board found that the applicant had not provided
credible and trustworthy evidence that was sufficient to support his alleged
fear of returning to Mexico.
[2]
For
the following reasons, the application for judicial review is allowed.
I. Issues
[3]
The
applicant challenges the Board’s decision on several fronts. First, he alleges
that by refusing to adjourn the hearing, the Board breached his right to a fair
hearing. The applicant also challenges the Board’s negative credibility findings
and, in addition, alleges that the Board failed to deal with his alleged fear
of persecution based on his aboriginal identity.
[4]
It
is not necessary for me to deal with all the arguments raised by the applicant
as I find that the issue of procedural fairness is determinative in this case.
A finding that the Board breached its duty to ensure procedural fairness does
not warrant any deference and requires this Court to set aside the Board’s
decision (Sketchley v Canada (Attorney General), 2005 FCA
404 at paras 53-54, [2006] 3 FCR 392).
II. Decision under review
[5]
Two
days prior to the hearing, Ms. Geraldine Sadoway, a staff lawyer from the
Parkdale Community Legal Services Clinic, requested a postponement of the
hearing on behalf of the applicant. In her letter, Ms. Sadoway stated that the
applicant had visited the clinic in February 2011 in order to secure legal
representation for his refugee claim hearing. However, due to the fact that the
clinic is a teaching clinic with rotating law students and due to workload
issues, they were unable to represent the applicant at that time. She stated
that if the hearing was postponed until mid‑May or early June 2011, the
clinic would then be able to represent the applicant. Ms. Sadoway also
proposed several alternative dates in May or early June to reschedule the
hearing.
[6]
The
request for a postponement was rejected.
[7]
At
the hearing, the applicant requested an adjournment for the same reasons; he
stated that he did not want to proceed without assistance and wished to be
assisted by a lawyer.
[8]
In
its written decision, the Board indicated that careful consideration was given
to the request for an adjournment, as well as the factors outlined in Rule 48
of the Refugee Protection Division Rules (SOR/2002-228) [the Rules]. The
Board member explained to the applicant why his request for a postponement was
refused:
a. The applicant
was in Canada since May
2009 and had been referred to the Board in July 2009; he had been in Canada for a
sufficient amount of time to find representation;
b. At the
scheduling conference that he attended on January 27, 2011, the Board made the
applicant aware of his right to counsel and the fact that he had between
January 27, 2011 and the hearing date, to secure legal representation;
c. The hearing
was scheduled peremptorily and, therefore, the hearing was to proceed unless
there were exceptional circumstances;
d. The applicant
had signed the Confirmation of Readiness declaration one month prior to the
hearing on January 27, 2011; and
e. The request
for postponement was made very late and all the resources devoted to proceeding
could not be reallocated efficiently at the last minute. The situation might
have been different if the applicant had made the request in advance.
[9]
The
Board noted that it found the last two reasons particularly relevant to its
decision to refuse to adjourn the hearing and found that there were no
exceptional circumstances that warranted granting the adjournment.
III. Analysis
[10]
It
is well established that the decision to allow a postponement or an adjournment
falls within the Board’s discretion. Furthermore, the right to counsel is not
absolute in immigration matters and the Board is master of its own procedure.
However, in determining whether to allow an adjournment based on the absence of
representation by counsel, the Board must respect procedural fairness (Golbom
v Canada (Minister of Citizenship and Immigration), 2010 FC 640 at para 11
(available on CanLII) [Golbom]; Conseillant v Canada (Minister of
Citizenship and Immigration), 2007 FC 49 at para 12, 159 ACWS (3d) 259; Austria
v Canada (Minister of Citizenship and Immigration), 2006 FC 423 at para 6,
147 ACWS (3d) 1048; Siloch v Canada (Minister of Employment and Immigration)
(1993) 38 ACWS (3d) 570, 151 NR 76 (FCA) [Siloch]; Prassad v Canada
(Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at 568-569, 57
DLR (4th) 663).
[11]
Subsection
48(4) of the Rules sets out non-exhaustive factors to be considered by the
Board in deciding whether to grant an adjournment. It reads as follows:
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48.
(1) A party may make an application to the Division to change the date or
time of a proceeding.
Form
and content of application
(2)
The party must
(a)
follow rule 44, but is not required to give evidence in an affidavit or
statutory declaration; and
(b)
give at least six dates, within the period specified by the Division, on
which the party is available to start or continue the proceeding.
If
proceeding is two working days or less away
(3)
If the party wants to make an application two working days or less before the
proceeding, the party must appear at the proceeding and make the application
orally.
Factors
(4)
In deciding the application, the Division must consider any relevant factors,
including
(a)
in the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b)
when the party made the application;
(c)
the time the party has had to prepare for the proceeding;
(d)
the efforts made by the party to be ready to start or continue the
proceeding;
(e)
in the case of a party who wants more time to obtain information in support
of the party’s arguments, the ability of the Division to proceed in the
absence of that information without causing an injustice;
(f)
whether the party has counsel;
(g)
the knowledge and experience of any counsel who represents the party;
(h)
any previous delays and the reasons for them;
(i)
whether the date and time fixed were peremptory;
(j)
whether allowing the application would unreasonably delay the proceedings or
likely cause an injustice; and
(k)
the nature and complexity of the matter to be heard.
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48.
(1) Toute partie peut demander à la Section de changer la date ou l’heure
d’une procédure.
Forme
et contenu de la demande
(2)
La partie :
a)
fait sa demande selon la règle 44, mais n’a pas à y joindre d’affidavit ou de
déclaration solennelle;
b) indique dans sa demande au
moins six dates, comprises dans la période fixée par la Section, auxquelles
elle est disponible pour commencer ou poursuivre la procédure.
Procédure
dans deux jours ouvrables ou moins
(3)
Si la partie veut faire sa demande deux jours ouvrables ou moins avant la
procédure, elle se présente à la procédure et fait sa demande oralement.
Éléments
à considérer
(4)
Pour statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a) dans le cas où elle a fixé
la date et l’heure de la procédure après avoir consulté ou tenté de consulter
la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la
demande a été faite;
c) le temps dont la partie a
disposé pour se préparer;
d) les efforts qu’elle a
faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a
besoin d’un délai supplémentaire pour obtenir des renseignements appuyant ses
arguments, la possibilité d’aller de l’avant en l’absence de ces
renseignements sans causer une injustice;
f) si la partie est
représentée;
g) dans le cas où la partie
est représentée, les connaissances et l’expérience de son conseil;
h) tout report antérieur et
sa justification;
i) si la date et l’heure qui
avaient été fixées étaient péremptoires;
j) si le fait d’accueillir la
demande ralentirait l’affaire de manière déraisonnable ou causerait
vraisemblablement une injustice;
k) la nature et la complexité
de l’affaire.
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[12]
In
addition, the jurisprudence of this Court and the Federal Court of Appeal has
recognized that other factors may be relevant to a Rule 48 analysis, such as
the efforts made by the applicant to secure legal representation and whether he
or she can be faulted for not being ready to proceed (Golbom, above, at
para 13; Siloch, above, at para 15; Modeste v Canada (Minister of
Citizenship and Immigration), 2006 FC 1027 at para 15, 299 FTR 95 [Modeste];
Sandy v Canada (Minister of Citizenship and Immigration), 2004 FC 1468
at para 52, 260 FTR 1 [Sandy]).
[13]
Further,
it has been held on numerous occasions that a failure to consider relevant
negative and positive factors in deciding whether to grant an adjournment,
constitutes a breach of the duty to act fairly (Golbom, above, at para
13; Sandy, above, at para 54; Modeste, above, at paras 18-19; Austria, above, at para
14; Siloch, above).
[14]
The
applicant argues that the Board failed to consider several factors that
militated in favour of granting the requested adjournment, namely:
a. That he had
made serious efforts to retain counsel and had approached several lawyers that
were charging fees that he could not afford;
b. That he was
finally able to secure free legal representation through the Parkdale Community
Legal Services Clinic but that nobody was available to assist him at the
scheduled date, due to workload issues. However, the letter sent to the Board
by Ms. Sadoway stated that the clinic was willing to represent the
applicant and would be able to represent him if the hearing was adjourned until
mid-May or early June. She even proposed several possible dates for a hearing
in May or June 2011;
c. That the
length of the requested adjournment was short;
d. That there
were no previous requests for postponement made by the applicant;
e. That he had
no choice other than to sign the readiness to proceed declaration, considering
that failure to do so would have led to an abandonment of the proceedings;
f.
That
he was clearly uncomfortable with proceeding without legal representation and
felt that his lack of representation was prejudicial to his ability to present
his case;
g. That the
nature of the issues were complex and difficult for an unrepresented claimant
to address properly; and
h. That his
failure to be represented jeopardized his ability to articulate his fear related
to his aboriginal identity.
[15]
The
respondent argues that the Board did in fact consider all of the relevant
factors and that the Court ought to examine the Board’s assessment on the basis
of the entire record and the transcript of the hearing. The respondent
maintains that there is no evidence on the record to indicate when the applicant
started looking to secure legal representation. The respondent added that the
Board clearly stated that it considered all of the factors set forth in Rule 48
and that it explicitly dealt with the factors that he considered determinative.
The respondent submits that it appears from a review of the transcript of the
hearing, that the Board member considered, in addition to the factors mentioned
in his decision, the fact that request for an adjournment was made at the very
last minute and that the applicant had 20 months to prepare for his hearing.
The respondent further argues that there was no formal commitment from the
Parkdale Community Legal Services Clinic to represent the applicant and that
the hearing had been set peremptorily.
[16]
The
respondent also contends that the transcript of the hearing shows that the
applicant was able to participate fully in the hearing. The central findings of
the Board related to the numerous inconsistencies and discrepancies in the
applicant’s history and the applicant did not need counsel to give a credible
account of his allegations. Therefore, the fact that he was self‑represented
did not impact on the fairness of the hearing or on the outcome of the Board’s
findings.
[17]
The
respondent further argues that the applicant never raised any claim related to
his alleged aboriginal identity. It submits that the mere filing of a
declaration of identity at the hearing is not sufficient to conclude that he
based his claim on persecution, as a result of his aboriginal identity.
Moreover, the respondent insists that the declaration letter that the applicant
filed at the hearing does not mention any fear of persecution or risk to the
applicant’s life.
[18]
I
am not satisfied that the Board weighed all of the relevant factors in
determining whether to grant the postponement. It is not sufficient for the
Board to state that it considered all the factors listed in Rule 48. The record
and the decision must show that the Board did, in fact, consider the positive
and negative factors in its assessment. In Ramadani v Canada (Minister of
Citizenship and Immigration), 2005 FC 211 at para 13, 137 ACWS (3d) 383,
Justice Layden-Stevenson underscored that the Board must “in its deliberations,
weigh the factors militating in favor of and against the granting of the
requested adjournment.”
[19]
In
the present
case, the
Board seems to weigh heavily on the fact that the hearing had been
scheduled peremptorily, the applicant had signed the readiness declaration and
his request for a postponement was made very late. While I acknowledge that
efficiency and resource allocation are certainly very relevant matters, they
must be weighed and balanced against the other positive factors. A reading of
the transcript and of the Board’s decision leads me to conclude that the Board
failed to consider the applicant’s efforts to seek legal representation, together
with the fact that he was finally able to secure free legal representation from
the Parkdale Community Legal Services Clinic. I do not agree with the
respondent that there was no commitment from the clinic to represent the
applicant. Ms. Sodaway’s letter clearly indicated that they would be able to
represent the applicant if the hearing was postponed to either mid-May or early
June. Moreover, the Board does not seem to have considered the short length of
the requested postponement. The applicant was not responsible for the time that
it took for the Board to schedule the hearing and he had not requested any
prior postponement. In addition, I find that, in the circumstances of this
case, it was unreasonable to give significant weight to the fact that the
applicant had signed the letter for readiness to proceed. While I acknowledge
that it was a relevant factor, it was not determinative, given that a failure
to sign the declaration would have led to an abandonment of the proceeding. The
applicant explained that he signed the declaration because he did not know what
else to do. The Board also did not consider the fact that the applicant was
clearly uncomfortable with proceeding without the assistance of counsel and
that he mentioned his reluctance on numerous occasions both before and during
the hearing.
[20]
Therefore,
I am not satisfied that the Board considered all of the relevant factors before
arriving at a negative decision and, in failing to do so, it breached its duty
to act fairly.
[21]
In
Austria, above, at
para 6, Justice Tremblay-Lamer stressed that the right to counsel was not
absolute, but that the right to a fair hearing was. Referring to a judgment
rendered by Justice Harrington in Canada (Minister of Citizenship and
Immigration) v Fast (2001), [2002] 3 FC 373 at paras 46-47, 208 DLR (4th)
729 (TD), Justice Tremblay-Lamer outlined that, in order to fulfil the duty of
fairness, the applicant must be able to participate in a meaningful way at the
hearing.
[22]
It
is clear from the transcript of the hearing that the applicant was very nervous,
and reluctant and uncomfortable to proceed without legal representation. He
raised the issue at least seven times during the hearing and in the beginning
refused to answer the questions that the Board member asked him. The applicant
also alleges that if he had been represented, he would have been able to
articulate the other basis for his claim, relating to his aboriginal identity.
In these circumstances, as I am not able to appreciate the full extent of the
prejudice, if any, to the applicant, I find it even more prudent to send the
file back for re-determination.
[23]
For
all of the above reasons, the application for judicial review is allowed. The
parties did not propose any question for certification and none arises in this
case.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial review is allowed
and the applicant’s claim for refugee protection is sent back for re-determination
by a different panel of the Board. No question is certified.
“Marie-Josée
Bédard”
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